When Expert Testimony is Necessary to Establish Attorneys’ Fees in Florida

The law and ethical rules dictate that a lawyer’s fee must be “reasonable.” In civil litigation, the topic of attorneys’ fees may arise when the prevailing party seeks said fees as part of their award. On the other side of the spectrum, an attorney’s fee may become an issue in and of itself if a lawyer sues a former client for unpaid legal fees. The crux of any request for attorneys’ fees can often hinge on reasonableness. But how is that proven?

In Florida, when a party is seeking an award of attorneys’ fees, generally, expert testimony is needed to establish the reasonableness of said fees. However, there are certain exceptions. This depends upon the type of case, the court in which the case is filed, and the parties involved. Additionally, the necessity of expert testimony becomes complicated in cases where an attorney seeks fees from a former client. However, recent appellate case law suggests expert testimony might not always be required for certain instances.

Expert Testimony for Attorneys Seeking Fees

As some legal practitioners have experienced, fee disputes between attorneys and clients may subsequently result in a lawsuit. Unlike other cases, attorneys seeking their own legal fees have less guidance as to whether expert testimony is necessary. In fact, a split has developed between the appellate courts.

This divergence is exemplified in two recent cases. In Valentin Rodriguez v. Altomare, 261 So. 3d 590 (Fla. 4th DCA 2018), the Fourth District Court of Appeals held that expert witness fee testimony was unnecessary in a separate breach of contract suit. In Rodriguez, the attorney sued his former client for unpaid legal fees. The attorney previously represented the client in a criminal matter. The case went to trial over an outstanding bill of $83,834 accrued in fees and expenses. The former client did not dispute the amount. The client further acknowledged that he executed a promissory note for the unpaid balance. The attorney sued the former client for breach of contract and sought compensatory damages in the amount of $83,834. In the answer to the complaint, the former client did not challenge the reasonableness of the flat fees.

Proving the Attorney Fee Amount

The only remaining issue at trial was the actual amount of damages. To prove this amount, the attorney entered into evidence the retainer agreement, the invoice sent to the client with the amount due, and the promissory note. The client did not object to the admissibility of any evidence. The attorney offered his own testimony into evidence concerning his legal training and experience. In addition, he testified on the work that he performed for the client, the cost of the services rendered, and the balance due.

The client did not put forth a case and instead. They instead moved for a directed verdict after the attorney had rested. This motion was on the grounds that the attorney did not present independent expert testimony to establish fee reasonableness. The attorney argued that no such testimony was required and that his own testimony justified the fees. The trial court disagreed; it granted the client’s motion for a directed verdict because no independent expert testimony was provided.

Appellate Disagreement

On appeal, the Fourth District reversed the lower court’s determination and remanded for a new trial. The appellate court held that “a party is seeking to recover previously incurred attorney’s fees as an element of compensatory damages in a separate breach of contract action, that party is not required to provide an independent expert witness to corroborate the reasonableness of the fees.”

The court drew a distinction between the instant case and other attorney fee cases. Here, an attorney brought a subsequent action to recover fees. This differs from cases in which a party seeks to have the opposing party pay an attorney’s fees. This second type would require expert testimony. As the court explains, “[i]t is well established ‘that where a party seeks to have the opposing party in a lawsuit pay for attorney’s fees incurred in that same action, the general rule in Florida is that independent expert testimony is required.’” (quoting Sea World of Fla., Inc. v. Ace Am. Ins. Cos., 28 So.3d 158, 160 (Fla. 5th DCA 2010).

Expert Testimony for Fees in Florida

Such a requirement has applied throughout Florida regardless of whether a first or third party is responsible for payment. As established by previous case law and as reiterated in Rodriguez, this “requirement exists because attorneys have an ethical duty, pursuant to the Florida Rules Regulating the Florida Bar, to charge fair and reasonable fees, regardless of the terms of the fee agreement.”

However, case law in the Fourth District hasn’t extended this requirement to cases where the attorneys’ fees are an element of compensatory damages. This was the case in Rodriguez. The appellate court further opined that because the attorney sought to recover flat fees and the client “not only acknowledged the obligation when he executed the promissory note but also failed to raise any substantive objections to the evidence at trial,” the attorney was not required to establish the overall reasonableness of his fees. In other words, because a valid fee contract existed, there was no need to prove reasonableness, by an expert or otherwise.

The Future of Establishing Attorneys’ Fees

The Third District Court of Appeals of Florida has subsequently followed the Fourth District’s opinion. This was the case in Law Offices of Granoff & Kessler, P.A. v. Glass, 305 So. 3d 345 (Fla. 3d DCA 2020). Here, the court held that expert testimony regarding fees isn’t necessary for breach of contract suits provided invoices and fee agreements are entered into evidence. Further expounding on Rodriguez, the Kessler decision draws a distinction between cases where “the fees are sought from a former client who agreed to pay them rather than an adverse party who did not.”

The Kessler opinion’s adoption of this rule signifies an agreement between at least some of Florida’s District Courts. However, the answer isn’t clear in all districts if attorneys can skip expert testimony to establish fees in cases involving a former client. Attorneys should still proceed with caution given the potential challenges defendants may raise. As such, attorneys are wise to prepare to provide expert testimony, if necessary, as the case law continues to develop.